An essay exploring the legal rationale used by the supreme court in the Japanese case 1946

An essay exploring the legal rationale used by the supreme court in the Japanese case 1946

In January, 1946 the judges of the Supreme Court of Canada heard their first case in the building
which houses the court today: Reference re Validity of Orders in Council in Relation to Persons
of the Japanese Race, [1946] S.C.R. 248 otherwise known as the Japanese Deportation case. In
a nutshell, the federal government used the War Measures Act to issue orders-in-council to
require all Japanese, including those who were born in Canada, to be given the choice of being
sent to Japan or being placed in internment camps. On behalf of the majority, Chief Justice
Rinfret held the orders-in-council were constitutional and that the Cabinet ‘was the sole judge of
the necessity or advisability of these measures.’
Please review the case and write an essay exploring the legal rationale used by the Supreme
Court in this matter. In your view, was there an effective legal means for Supreme Court to
decide in 1946 that the action taken by Ottawa in this case was a violation of the basic civil
rights of the affected individuals despite the lack of a Charter of Rights and Freedoms in the
Constitution at this time? If so, how could Supreme Court judges in this case establish civil
rights for these persons in this matter given the lack of a constitutional provision protecting such
rights? Would it have been improper of the Court to advance civil rights at this time given the
egregious actions of the Canadian government? What role, if any, did race play in the written
decisions of the majority and the minority decisions. Please explain. Also please remember to
fully justify your legal position within the terms of the relevant case-law as it existed in 1946.

10 pages double spaced. The McGill Guide for citations and paper. Before you write • Determine which essay topic you will be writing on. • Read the information and questions carefully. Determine what kind of paper the Professor is requesting you write (academic essay/case commentary/legal opinion). Different approaches demand different formats. • Pick out the specific questions asked in the topic stem and base your research accordingly. (Note: This is not a free-writing assignment. Questions are provided and you are to answer these questions head on. The better you answer the questions and the extent of knowledge you provide in response will be reflected in your mark.) Writing your paper Introduction: Your introduction should provide a brief overview of the situation at hand followed by the questions you explored in your research and that you will be addressing throughout your paper. In response to these questions you state your thesis/argument/position and how you will go about explaining it. Maintain a clear position throughout the introduction, and the paper. **Note: Never use ‘I’ – ‘In my opinion’ – ‘I believe’ in academic work. You are not yet an established academic and your direct opinion is not persuasive. Use third person past tense when you write academically unless otherwise requested (when asked to write a “legal opinion” this still does not mean to use ‘I’). Body: Building from the structure laid out in your introduction, logically order your paper to address the relevant points (headings are useful here). Any claim that you make needs to be supported by evidence in support of your overall argument or sub-argument. The more evidence you provide in support of your claim, the more persuasive it is academically. Conclusion: No new information in the conclusion. Conclusions summarize your arguments, restate your position, and perhaps discuss implications of your conclusion. Your conclusion gives you the opportunity to provide informed analysis on the research, arguments and the conclusions you have drawn. IT GOES WITHOUT SAYING THAT LANGUAGE, SPELLING AND GRAMMAR SHOULD BE CLEAR THROUGHOUT THE PAPER. IF YOU ARE LACKING IN THESE AREAS, THE OVERALL CREDIBILITY OF YOUR WORK WILL BE UNDERMINED. Questions to ask yourself – Have you answered the question(s) (instead of the question you would have liked to answer)? – Have you answered the question(s) in a way you find adequate? – Have you followed your introduction and followed through with the steps you outlined? – Is there a logical progression from your first argument through to your conclusion? – Are your arguments adequately supported by evidence? – Has anything important been left out?


Given that the Canadian and Europe’s cultural groups may share common traits, there are certain believes or customs within the cultures  that may not be appealing to the other community, In alignment with our topic of discussion both governments i.e. the Japanese government and the Canadian government took appropriate measures then towards safeguarding the interests of their own citizens. The selfish decisions as some claimed saved a life or two in this case. The Canadian government through a ruling of the Supreme Court deported Japanese-Canadian citizens. Even though the decision was made then, people have been wondering why the radical ruling with regards to this states safety?, as to whether the decision made then was justifiable to ensure the safety of the state or whether there were other options that the government could explore in order to achieve a similar result? Or as to whether the move was political, a call that the president could have made without involving the judiciary, the same way the then U.S president Roosevelt made the call after the Perl harbor incident

Pearl Harbor, Hiroshima and Nagasaki are common words that will forever remain in our history reminding the world of a very dark history “world war 2” which cost us millions of lives. the war brought a situation where in a particular day a given society is promoting diversity within and the next day they are criticizing the same, for sure choices have consequences and in some cases the consequences can be so harsh not only affecting a certain individual but even the people close, the Japanese deportation case is a clear illustration of this, given that disagreement between some leaders escalated into something huge, the trust that was there between Canadians and Japanese began to vanish, the peaceful coexistence between them also started turning chaotic and this was when the court made a decision to either deport or take the Japanese to camps. According to research conducted by persily Nathaniel, the author of the book public opinion and constitutional controversies majority of the Canadians by then didn’t think that Japanese should be allowed to return back to the pacific coast after the war is over, according to his statistics 36% of Canadians have no problem with Japanese returning to pacific Coast, 48% hold the opinion that they shouldn’t return while only 16% hold no opinion. According to poll conducted by national opinion research center in 1946 50% of respondents are of the opinion that the Japanese living in Canada were loyal to the government they were residing in. however in a similar survey 66% believe their safety is in jeopardy since they somehow believe the Japanese had spied for japan.

Due to the looming tension building up within Japanese and Canadians orders in council were passed by the defense of Canada regulation under the war measures act they include orders 7355, 7356 and 7357 in the council which are enshrined within the national emergency transitional power act the groups affected with regards to the developments from the supreme court include  Japanese nationalists, naturalized British subject of Japanese origin, British born of japan origin and families of those deported faced the same wrath. The orders also stipulated that one would lose his or her citizenship if deported. Finally orders for inquiries with respect for repatriation even though the rationale behind these decisions isn’t clear yet the decisions faced appeal after appeal at some point in 1945 four young Japanese Canadians Fred T. Korematsu, minoru yasui, Gordon K. Hirabayashi and mitsuye Endo challenged the decision by the Canadian supreme court depriving them of their rights to liberty the government scared to face them in court filed complaints against them (daniels)


Order 7355 was enacted due to the rising insecurity issues brought about by the war between Canaan and japan, according to Maxwell mercer sr. in  his blog titled “contemporary reflections and analysis of the 1946 judgment  reference  to the validity of orders in the council in relation to persons of Japanese race” he believes that curfews and deportation orders were defense mechanism towards insecurity within the country, given that there were spy’s within the coast  while the time to narrow down the culprits was limited the only way peace could have prevailed was if the enemy was kept in the dark he describes the reasons for the order in his blog as security, defense, peace, order and welfare of Canada. The decision to deport Japanese was beyond any reasonable doubt knocking and anyone who took time to understand the public opinion knew that the state had so much pressure  to deport all the Japanese in the  book by Nathaniel persily “public opinion and  constitutional controversies” page 307 contains  an opinion conducted by the national opinion research Centre where 66% of those who took the  survey  feel that some Japanese are spying on their native country (persily) in their defense lexeme  indicates that during  the war the Japanese in Canada sympathized with their fellow nationals in japan  to assist them, it is believed that some  Japanese were even reluctant  to leave Canada for this reason (lexum)

Order 7357 the control of persons of the Japanese race has indicated the desirability of determining whether the conduct of such Japanese persons in time of war was such as to make the deportation of any of them desirable in the national interests according to his statistics 36% of Canadians have no problem with Japanese returning to pacific Coast, 48% hold the opinion that they shouldn’t return while only 16% hold no opinion. According to poll conducted by national opinion research center in 1946 50% of respondents are of the opinion that the Japanese living in Canada were loyal to the government they were residing in. however in a similar survey 66% believe their safety is in jeopardy since they somehow believe the Japanese had spied for japan.

. Whereas during the war particular measures with regards to persons of the Japanese race in Canada were made necessary by reason of their concentration along the pacific coast of Canada this justifying provision is followed shortly by deportation of any of them desirable in the national interest a move viewed as an act of fear and uncertainty. The move to lock out and regulate

Order 7356 elaborates further on the idea of deportation this order “outlines that those unfit for permanent residence in Canada shall as  and from date upon which he leaves Canada in the course of  such  deportation cease to be either a  British subject or  a Canadian national” Canadians who had been detained in camps were not  only subject to deportation but ultimately exiled as  well such individuals were stripped of their nationality because of post war provisions that had been implemented out of fear

The orders in council through backed by the war measures act and wielding significant lawful maneuverability because of this relation were challenged on various terms in the supreme court of Canada. Target was on definition of terms within the courts document as well as the necessity of war time provisions in post-war Canada

The main issues that caused bond of contention between the committee of Japanese and the Canadian supreme court were, the legality of the national emergency transitional power act and orders to become null and void once the war is over, the committees argument was in line with how chick the implemented law was given that it was only valid during the war and once the war was over and done with things would get back to normal. They referred a precedent from world war 1 argued out by sir Lyman duff where he claimed that “no proclamation has been issued declaring that the war no longer exists actual war conditions have infect long ago ceased to exist and consequently existence of war can  no longer be urged as a  reason in fact for maintaining these  extraordinary regulations as necessary or advisable for the  security of Canada” (trickettmercer) the  terminologies presented in the  house also caused mayhem and  confusion since there was too much  debate  with regards to the terms deportation and  exile.

In reflecting the outcome of orders 7356, notably deportation, deport exile and banishment, in the court these terminologies need proper clarification of a proper judgment on the same given that a slight misunderstanding can cause trouble committee of japan Canadians argued that war time measures were no longer necessary in post war Canada and that the orders as previously discussed should become immediately inoperative at the war expiration. The committee references a closely related precedent from first world war where upon observing the for France pulp and power co. v Manitoba free press decision 1923 it is argued by sir Lyman duff that it must be realized that although no proclamation has been issued declaring that the war no longer exists actual war conditions have infect long ago ceased to exist and consequently existence of war can no longer be argued as reason in fact for maintaining these extraordinary regulations as necessary or advisable for the security of Canada

In orders 7355 and 7356 there is no provision that states a natural born British subject of Japanese descent would cease to be a Canadian national, therefore, there would be nothing to prevent such person from immediately reentering Canada. Even though the arguments are valid the governors in council notion that all orders and regulations lawfully made under the war measures act or pursuant to authority created under the said act in force immediately before the day the national emergency transitional power act 1945 came into force shall while that act is in force continue in full force and effect subject to amendments or revocation under that act.

The cost  of deporting Chinese all Japanese is huge ticket mercer blog dubbed “ a  contemporary reflection and  analysis of the 1946 judgment: reflection to the validity of orders in council in relation to persons of Japanese race”  argument is that the judgment would cost the tax ski payers a huge chunk of money to deport these Japanese he insists that they would rather use  alternate tie means of handling the issue since the  number of Japanese who are  to be deported are  three thousand nine hundred and sixty five a number close to five thousand, in addition to costing the economy in terms of  big-time in terms  of  labor  force, however according  to the judges, the loss brought down upon to Perl harbor outweighs the benefits that the Japanese citizens bring towards the Canadian economy

The supreme court of Canada on the decision to deport Japanese was not based on previous decisions by the same court the decision was based on war measures act. According to the report in ticket dated July 16th 2014 the orders of the  court 7355 stated  that any minor under 16 years whether born or immigrated to Canada together with the wife of the deported husband face  the  same whip, in that they are all deported according to our report this  violates previous decisions given that minors are  not to be  subjected  to the orders 7355 of of the war  measures act,  the decision brought about  by majority of the judges signified that the minors were to face  the same  fate, in the case of a wife of a to be deported man, she  will also be deported even  though they share the same.

At first everyone was okay with the issue and the supreme court was the champion for  all  but after  sometime the Canadians started protesting for the ban to be lifted, in a report conducted by dated July 10th 2016 it is reported that after the war was over japan was the most affected since the atomic bombs that were dropped nearly destroyed half of the country (tickey) according to tickey it seems like every eye was  extending a helping to them apart  from the Canadian supreme court which according to him seemed like a burden too heavy to unload, it took the intervention of  protesters and politicians where the federal cabinet revoked the legislation according to Greg Robinsons book the tragedy of democracy he highlights on how  the streets were filled with protestors demanding the revocation of the legislation with white T-shirt branded Peace in black. For sure their outcry was heard  and in 1949 the revocation was successful however Greg Robinson in his book tragedy of democracy outlines the dark dictatorship  of how the Canadian  government denied Canadian citizens of  japan  ancestry living in japan passports to travel back (robinson).

The Japanese property that had been damaged due to this issue cases were piling up in the courts and the government was left with no option but face the consequences of their actions, the pain of double tragedy where you are to refund what you destroyed, the agony is deep beyond any reasonable doubt and is clearly illustrated by Greg Robinson where the government launched a royal commission whose role was to research on all the affected households during the deportation saga. In 1950 $1.3million was awarded to 1,400 Japanese Canadians as compensation eve n though it wasn’t enough to recover what they had lost at least the government had shown an effort towards reconciling with the purported enemy.

The final aftermath of the Japanese case 1946 was the apology of from the prime minister himself in 1988, where he announced a compensation package of $21000 each to any Japanese who was affected by the deportation case like c make captures it in his journal named forsaken  and  forgotten where he bashes  the compensation claiming that its very little as compared to what the Canadians did to innocent civilians who meant no harm, he harshly criticizes the whole society referring to them as hypocrites who are just doing it for side shows.